CACI No. 1305A. Battery by Law Enforcement Officer (Nondeadly Force) - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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1305A.Battery by Law Enforcement Officer (Nondeadly
Force) - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by using unreasonable force to [arrest/detain
[him/her/nonbinary pronoun]/ [,/or] prevent [his/her/nonbinary pronoun]
escape/ [,/or] overcome [his/her/nonbinary pronoun] resistance]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally touched [name of plaintiff]
[or caused [name of plaintiff] to be touched];
2. That [name of defendant] used unreasonable force on [name of
plaintiff];
3. That [name of plaintiff] did not consent to the use of that force;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s use of unreasonable force was a
substantial factor in causing [name of plaintiff]’s harm.
[A/An] [insert type of offıcer] may use reasonable force to [arrest/detain/
[,/or] prevent the escape of/ [,/or] overcome the resistance of] a person
when the officer has reasonable cause to believe that that person has
committed a crime. [Even if the officer is mistaken, a person being
arrested or detained has a duty not to use force to resist the officer
unless the officer is using unreasonable force.]
In deciding whether [name of defendant] used unreasonable force, you
must consider the totality of the circumstances and determine what
amount of force a reasonable [insert type of offıcer] in [name of
defendant]’s position would have used under the same or similar
circumstances. “Totality of the circumstances” means all facts known to
the officer at the time, including the conduct of [name of defendant] and
[name of plaintiff] leading up to the use of force. You should consider,
among other factors, the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; and
(c) Whether [name of plaintiff] was actively resisting [arrest/detention]
or attempting to evade [arrest/detention].
[An officer who makes or attempts to make an arrest does not have to
retreat or stop because the person being arrested resists or threatens to
resist. Tactical repositioning or other deescalation tactics are not retreat.
An officer does not lose the right to self-defense by using objectively
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reasonable force to [arrest/detain/ [,/or] prevent escape/ [,/or] overcome
resistance.]
New September 2003; Revised December 2012, May 2020, November 2020;
Renumbered from CACI No. 1305 and Revised May 2021
Directions for Use
See CACI No. 1302, Consent Explained, and CACI No. 1303, Invalid Consent, if
there is an issue concerning the plaintiff’s consent.
For additional authorities on excessive force, see the Sources and Authority for
CACI No. 440, Negligent Use of Nondeadly Force by Law Enforcement Offıcer in
Arrest or Other Seizure - Essential Factual Elements, CACI No. 441, Negligent Use
of Deadly Force by Peace Offıcer - Essential Factual Elements, and CACI No.
3020, Excessive Use of Force - Unreasonable Arrest or Other Seizure - Essential
Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers.” It would appear that a battery claim involving nondeadly force does not
depend on whether the individual qualifies as a peace officer under the Penal Code.
(See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace
officer”].) For cases involving the use of deadly force by a peace officer, use CACI
No. 1305B, Battery by Peace Offıcer (Deadly Force) - Essential Factual Elements.
(Pen. Code, § 835a.) This instruction and CACI No. 1305B may require
modification if the jury must decide whether the force used by the defendant was
deadly or nondeadly.
Include the bracketed sentence in the second paragraph only if the defendant claims
that the person being arrested or detained resisted the officer.
Factors (a), (b), and (c) are often referred to as the Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 673
F.3d 864, 872); additional factors may be added if appropriate to the facts of the
case.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
Sources and Authority
Use of Objectively Reasonable Force to Arrest. Penal Code section 835a.
Duty to Submit to Arrest. Penal Code section 834a.
“Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . [T]he question is whether the officers’ actions are ‘objectively
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reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. . . .” In calculating whether the
amount of force was excessive, a trier of fact must recognize that peace officers
are often forced to make split-second judgments, in tense circumstances,
concerning the amount of force required.” (Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 527-528 [89 Cal.Rptr.3d 801], internal citations omitted.)
“[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
“[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
citation omitted.)
“Consistent with these principles and the factors the high court has identified, the
federal court in this case did not instruct the jury to conduct some abstract or
nebulous balancing of competing interests. Instead, as noted above, it instructed
the jury to determine the reasonableness of the officers’ actions in light of ‘the
totality of the circumstances at the time,’ including ‘the severity of the crime at
issue, whether the plaintiff posed a reasonable threat to the safety of the officer
or others, and whether the plaintiff was actively resisting detention or attempting
to escape.’ The same consideration of the totality of the circumstances is
required in determining reasonableness under California negligence law.
Moreover, California’s civil jury instructions specifically direct the jury, in
determining whether police officers used unreasonable force for purposes of tort
liability, to consider the same factors that the high court has identified and that
the federal court’s instructions in this case set forth. (Judicial Council of Cal.
Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in arguing that the
federal and state standards of reasonableness differ in that the former involves a
fact finders balancing of competing interests.” (Hernandez v. City of Pomona
(2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506], internal citation
omitted.)
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2020) Crimes Against the
Person, §§ 13-14
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Crimes Against the
Person, § 39
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 496
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.22,
58.61, 58.92 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
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(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
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